Blaine’s Anti-Catholicism Strikes Again — This Time in Colorado

COMMENTARY: Decisions like the one in Taxpayers for Public Education v. Douglas County School District are not only legally unsound, but they are at odds with the sentiments of most Americans.

(photo: Shutterstock)

The Colorado Supreme Court overturned a school program helping hundreds of families attend schools of their choosing based on a law passed at the 19th-century height of anti-Catholic bigotry.

In 2011, the Douglas County School District adopted a “Choice Scholarship Pilot Program.” Under the program, students who were accepted to a private school were eligible to receive a scholarship to help with the private school’s tuition. The money, however, does not go to the school, but is sent directly to the student’s family. Most but not all of the scholarship students were attending a wide variety of religious schools of varying denominations.

The Colorado Supreme Court would have none of this reasonable accommodation of parental choice within the public-school system. Instead, the court determined that the program violated the Colorado Constitution. The state constitution contains a so-called “Blaine amendment,” named after the anti-Catholic Sen. James Blaine, R-Maine (1830-1893). These laws were directed against Catholic schools, by prohibiting any public support for them; public schools, however, were allowed to inculcate generic “Christian” (typically Protestant) principles. Some two dozen states still have such laws.

Article IX, Section 7 of the Colorado Constitution provides generally that no county or school district “shall ever make any appropriation, or pay from any public fund or money whatever, anything in aid of any church or sectarian society … or to help support or sustain any school … controlled by any church or sectarian denomination whatsoever.”

The court found that the choice program provided “support” to “sectarian” schools and so therefore could not be sustained. Although the court admitted that the Choice Scholarship program “does not explicitly funnel money directly to religious schools, instead providing financial aid to students,” the program, it found, still did not meet the constitutional standard. The court found that the provision applied to any kind of indirect aid as well, or any kind of “facilitation.”

There are two flaws with this argument. First, the court reads the language of Section 7 too broadly. The constitutional provision only prohibits the use of public moneys to “sustain or support” religious schools. The Choice Scholarship program does not do that. Rather, the program puts money in the hands of parents to spend as they see fit; the court found a violation simply in the fact that parents “may then use that money to pay for a religious education.”

The court’s expansive reading, as the dissent points out, would prohibit aid to many other programs, including ones that the court had previously upheld. The court’s reading, the dissent argues, violates not only the state constitution, but the principles of the First Amendment to the U.S. Constitution as well. The distinction between direct and indirect support for religion is well established, and the court here simply disregarded that distinction.

The fact that most of the students currently are using the choice program to attend religious schools does not affect the constitutionality of the choice program itself. Next year, all the students could choose to use the money for some other school. The relevant question is whether the government is putting its money to sustain or support religious schools. Here it is not.

The second problem is that the court misreads the constitutional provision itself. The term “sectarian” in the Colorado Constitution — keeping with its Blaine heritage — did not mean just any religion, as the court supposed; instead, it was designed to keep support away from Catholic schools. A law that on its fact appeared to be neutral in fact conceals governmental hostility to people of a particular religion, here Catholics; for the dissenting judges, that should have been enough for the court to rule on behalf of people of all faiths.

The majority tries to equate the term “sectarian” with “religious” of any kind, but as the dissent points out, that is not true. Earlier Colorado cases clearly believed sectarian meant Catholic — one upheld Bible reading against the charge that such reading was “sectarian.” The dissent argues convincingly that a statute clearly enacted to discriminate against Catholics should not now be used to discriminate against religious people more generally.

Americans, even after decades of secular assault, still are an overwhelmingly religious people. Programs like the one in Douglas County are meant to acknowledge that fact and achieve accommodation and social peace with the desires of the electorate.

Decisions like this are not only legally unsound, but they are at odds with the sentiments of most Americans, simply to tolerate the beliefs of others in the public square.


Gerald J. Russello is a lawyer and editor of The University Bookman.